Legal Advice for Life During the Rule of Jeff Sessions

Attorney General Jeff Sessions

On Jan. 4, Attorney General Jeff Sessions issued a new memo on marijuana-law enforcement that has left many people in legal states confused or worried. The memo rescinded the 2013 Cole Memo, which instructed federal prosecutors to consider their limited resources when contemplating going after sales or cultivation that were legal under state law. Instead, Sessions promised “a return to the rule of law” and “directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.”

In practice, this means that each U.S. Attorney in charge of one of the nation’s 94 judicial districts can set their own policies on marijuana prosecution, ranging from hands-off to aggressive—opening the way to a crackdown on recreational cannabis in the nine jurisdictions where it has been legalized, eight states and Washington, D.C.

Sessions dropped this threat just as California and its many cities were getting their new cannabis-regulation systems going. For the first time in the state’s history, cannabis will be grown, distributed and sold in a highly regulated environment, generating a substantial amount of jobs and tax revenues. All of its biggest cities have already created elaborate licensing systems for medical and non-medical commercial cannabis activity.

Many California politicians criticized Sessions’ move. “We hope the federal government will align itself with the will of, not just Californians, but Americans and not go to a tired playbook of a War on Drugs,” Los Angeles Mayor Eric Garcetti stated. Garcetti has taken strong pro-cannabis positions, including appointing activist Cat Packer to head the city Department of Cannabis Regulation.

Long Beach Mayor Robert Garcia and San Leandro Mayor Pauline Cutter joined eight other U.S. mayors, including New York’s Bill de Blasio and Denver’s Michael Hancock, in sending a letter to Sessions condemning his decision. “President Trump and the Department of Justice should not waste our law enforcement resources and taxpayer money on prosecuting legal activity and instead prioritize their efforts on ending the scourge of the opioid crisis,” they wrote. “We will do everything we can within the rule of law to keep our residents safe, end the opioid crisis, and ensure our businesses, residents and visitors are protected from this overreach.”

On the other hand, Adam Braverman, the U.S. Attorney for the Southern District of California in San Diego, hailed Sessions’ new policy, saying it “returns trust and local control to federal prosecutors” to enforce the Controlled Substances Act. “The Department of Justice is committed to reducing violent crime and enforcing the laws as enacted by Congress,” he told NBC 7 San Diego. “The cultivation, distribution, and possession of marijuana has long been and remains a violation of federal law. We’ll continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations and stem the rising tide of the drug crisis.”

Right to left: Congressmen Dana Rohrabacher (R-Calif.) and Earl Blumenauer (D-Ore.)

Preserving What’s Left of Federal Protections with the Rohrabacher-Blumenauer Amendment

Since December 2014, the Rohrabacher-Farr amendment to the federal appropriations bill, now known as the Rohrabacher-Blumenauer amendment for the two House members who sponsor it, has prohibited the Department of Justice from using funds to prevent states from implementing their own state laws that authorize the use, possession, cultivation and distribution of medical marijuana.

The federal Ninth Circuit Court of Appeals’ 2016 decision in the U.S. v. McIntosh case interpreted this to provide de facto protection for anyone facing federal criminal prosecution for medical-marijuana activity allowed by state law. It effectively prevents U.S. attorneys from prosecuting any such cases in court, even though marijuana use, possession, cultivation and distribution remain crimes in all circumstances under federal law.

The Rohrabacher-Blumenauer amendment has been included in various short-term spending bills. Unfortunately, the most recent expired on Jan. 19. Based on the number of times it has already been extended and the shifting public opinion in favor of marijuana legalization since the amendment was first implemented, it will probably be be extended again.

An appropriations-bill amendment sponsored by Reps. Tom McClintock (R-Calif.) and Jared Polis (D-Colo.), would override Sessions’ nullifying of the Cole Memo and expand the Rohrabacher-Blumenauer amendment’s protections to recreational-marijuana states.

For now, medical-marijuana use, possession, cultivation and distribution remain protected from federal prosecution by the Rohrabacher-Blumenauer amendment and the U.S. v. McIntosh decision. But recreational marijuana is in a gray area, clearly legal under state law, but illegal under federal law, and without any protection from federal prosecution.

Image courtesy of ACLU of Illinois

Asset Forfeiture Remains a Problem, But Simple Reforms Would Help

Asset forfeiture took off in the 1970s as a new way to fight organized crime and money laundering. Predictably, government agencies found it an easy way to raise funds. Unlike in criminal cases, the government doesn’t need to prove its case beyond a reasonable doubt; it just has to make a case by a “preponderance of the evidence.” The owner doesn’t have to be convicted of any crime in order to have their property seized. Under this system, it’s easy for innocent people unfamiliar with the legal system or who don’t keep detailed records to lose their money and property.

Forfeiture laws are a recurring threat to cannabis-related businesses. They allow the government to seize assets (bank accounts, cash, vehicles, and homes or other buildings) that the government alleges are tied to the distribution or production of controlled substances. Because marijuana is illegal under federal law, the federal government can seize assets linked to conduct that’s fully legal under state law, such as cultivation or sales.

As the abuses and unfair results of forfeiture gained more exposure, there have been reform efforts. In 2015, then-Attorney General Eric Holder announced new policies restricting schemes where the federal government would encourage local governments to seize money and share profits. But Sessions reversed that policy last July, when he announced he was reinstating the “adoptive forfeiture” process, in which a state or local law-enforcement agency seizes property pursuant to state law and then requests that a federal agency take the seized asset and forfeit it under federal law. Adoptive forfeitures, however, are only a small fraction of overall asset forfeitures.

Fortunately, more than half the states have recently passed reforms curtailing the power of police to seize assets. Many state now require a criminal conviction before property or money can be seized. As most crime and law enforcement occurs at the local level, the federal government rarely gets involved in asset forfeitures unless a state gets them involved. Currently, the Rohrabacher-Blumenauer amendment and the McIntosh ruling restricts prosecutors from seeking forfeitures against patients and companies in legal medical marijuana states,

Much of the federal government’s asset forfeiture work is done by the DEA, the FBI and U.S. Attorneys, which are all part of the Department of Justice. The Rohrabacher-Blumenauer law severely restricts the avenues that the federal government would have to seize money or property related to medical marijuana. However, until the McClintock-Polis amendment is passed or other protections are enacted, non-medical cannabis activity will remain subject to forfeiture.

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Will the Rohrabacher-Blumenauer Amendment Survive?

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California Medical-Marijuana Pioneer Dennis Peron Passes Away

Allison Margolin and James Raza Lawrence wrote this article. If you enjoyed this Freedom Leaf article, subscribe to the magazine today!